Common law; Cal. Code Civ. Proc. §§ 340(c), 425.18
Malicious prosecution: the one claim the litigation privilege does not bar
A claim in California superior courts · Last verified August 26, 2026
The litigation privilege at Civil Code § 47(b) is absolute. It bars claims arising from anything said or filed in a judicial proceeding, regardless of malice, and it defeats defamation, interference, emotional distress, and fraud claims built on litigation conduct.
Malicious prosecution is the one carve-out. California recognises it as an exception because without it there would be no civil remedy at all for being dragged through a baseless case.
But the exception is narrow by design, and the claim is deliberately hard. Every element is a hurdle, and the anti-SLAPP statute applies to the claim itself — so a plaintiff who brings a weak malicious prosecution action pays the defendant's attorney's fees for the privilege.
What the claim is
Someone brought a legal action against you, it ended in your favour, they had no reasonable grounds for it, and they brought it for an improper purpose.
It covers both civil and criminal proceedings, and extends to some administrative proceedings.
A related but distinct claim is abuse of process — using a properly issued process for a purpose it was not designed to achieve. Abuse of process does not require a favourable termination or the absence of probable cause, which makes it easier to plead and, for that reason, more often attempted.
Where the right comes from
Common law, with the anti-SLAPP interaction governed by CCP § 425.18, the SLAPPback provision.
What a plaintiff has to prove
- The defendant was actively involved in bringing or continuing a civil or criminal proceeding against the plaintiff.
- The proceeding terminated in the plaintiff's favour, on the merits.
- No reasonable person in the defendant's position would have believed there were grounds for it — the absence of probable cause.
- The defendant acted primarily for a purpose other than succeeding on the merits — malice.
- The plaintiff was harmed, and the conduct was a substantial factor.
Favourable termination is the element that kills most claims
The termination must reflect on the merits of the underlying case. A dismissal that says nothing about whether the claim was good is not a favourable termination.
What does not qualify: a settlement; a dismissal negotiated between the parties; a dismissal on a technical or procedural ground; a dismissal for failure to serve; a compromise of any kind.
What does: a judgment on the merits; a voluntary dismissal reflecting the plaintiff's recognition the case had no merit; a dismissal after a demurrer sustained without leave.
A defendant who settles a meritless case against them gives up the malicious prosecution claim, which is a genuine strategic cost of settling and one most litigants never consider.
Probable cause is measured objectively
The question is legal, decided by the court, not the jury. Whether any reasonable attorney would have thought the claim tenable — not whether the defendant personally believed in it.
A claim can be legally untenable and still supported by probable cause if a reasonable lawyer could have thought otherwise. The standard tolerates losing arguments; it does not tolerate arguments no competent lawyer could have made.
Malice is measured subjectively
An improper purpose — bringing the case to harass, to extract a settlement, to gain leverage in another dispute, to injure the defendant's reputation or business, rather than to win it.
Lack of probable cause does not establish malice, though it is evidence from which malice may be inferred.
How long you have to file
One year, under CCP § 340(c) — the same subdivision as defamation and false imprisonment.
It runs from the favourable termination, and where the underlying case was appealed, generally from the final resolution of the appeal — because the termination is not favourable until it is final.
Six months to present a government claim where the defendant is a public entity or prosecutor, though prosecutorial immunity will usually defeat the claim on other grounds.
What has to happen before you file
Nothing — but the underlying case must be over, and over in your favour. That is a substantive element rather than a procedural prerequisite, and it means a malicious prosecution claim can never be brought as a cross-complaint in the case complained of.
Character: a substantive element of the claim, not a gate. There is nothing to cure and nothing to exhaust; without a favourable termination there is no claim yet.
Who can be sued — and who cannot
The party who brought the underlying action.
And their attorney, which is what makes the claim consequential. A lawyer who continued prosecuting a case after learning it lacked probable cause can be personally liable — the theory is continuing the action, not only initiating it.
Not a prosecutor. Prosecutorial immunity is absolute for decisions to charge, so a malicious prosecution claim arising from a criminal case is generally brought against the complaining witness who supplied false information, not the district attorney.
Not someone who merely reported facts to authorities and left the charging decision to them — unless they knowingly supplied false information that caused the prosecution.
Common defenses
No favourable termination — the most successful defense, and it disposes of any claim following a settlement or a procedural dismissal.
Probable cause, decided by the court as a matter of law and frequently resolved on summary judgment.
No malice.
Advice of counsel. A party who made a full and honest disclosure of the facts to a lawyer and acted on the advice given has a defense to malice, and often to probable cause.
The interim adverse judgment rule. If the underlying claim survived a demurrer, a summary judgment motion, or won at trial before being reversed, that ordinarily establishes probable cause as a matter of law — because a court thought it had merit. The exception is where the interim ruling was obtained by fraud or perjury.
Anti-SLAPP, and it applies with full force. A malicious prosecution claim arises from the defendant's petitioning activity by definition, so the first anti-SLAPP prong is always satisfied and the plaintiff must show a probability of prevailing on evidence, with discovery stayed.
CCP § 425.18 is the counterweight. The SLAPPback provision applies to a malicious prosecution claim brought after a successful anti-SLAPP motion in the underlying case, and it relaxes some of the ordinary anti-SLAPP consequences — a defendant who was SLAPPed and won gets a better path back. Note the limit: § 425.18 applies to a SLAPPback, not to every malicious prosecution claim.
The one-year period.
What the claim pays
The costs of defending the underlying action, including the attorney's fees you paid — which is the core measure, and the reason the claim exists.
Lost earnings and business losses.
Emotional distress damages, recoverable without a separate cause of action.
Harm to reputation.
Punitive damages under Civil Code § 3294 on clear and convincing proof — and a plaintiff who has already proved malice as an element is well positioned, which is why these claims produce large verdicts when they succeed.
No fee-shifting on the claim itself — the fees from the underlying case are recovered as damages, not through a fee statute, which is a different thing and requires proving them.
Jury trial: yes, on malice and damages. Probable cause is decided by the court.
What people get wrong
"They sued me for no reason, so I'll countersue." You cannot bring it as a cross-complaint. The underlying case must be finished and finished in your favour.
"The case was dismissed, so I won." Only if the dismissal reflected on the merits. A settlement or a procedural dismissal is not a favourable termination.
"I settled to make it go away, and now I'll sue them." Settling extinguishes the claim.
"Their case was hopeless." Probable cause tolerates losing arguments. The question is whether any reasonable attorney could have thought it tenable.
"They lost the motion, so there was no probable cause." The opposite, often. If their claim survived a demurrer or summary judgment before failing, that ordinarily establishes probable cause.
"I can sue the lawyer." You can — but only for continuing the case after they should have known it lacked probable cause.
"I have two years." One, from the favourable termination.
"There's no risk in bringing it." There is substantial risk. Anti-SLAPP applies automatically, and losing means paying the defendant's fees.
Where it came from
The common law has always been reluctant about this claim, and for a reason it states openly: a remedy for being sued deters people from suing. Every element is calibrated against the risk that the tort would make litigants think twice about bringing legitimate but uncertain claims.
California's litigation privilege made the tension acute. Civil Code § 47(b) is among the broadest in the country and bars nearly every other theory arising from litigation conduct. Courts have consistently held malicious prosecution is the exception — not because the privilege does not fit, but because holding otherwise would leave no remedy at all for an abusive lawsuit.
The anti-SLAPP statute then complicated it further. Because a malicious prosecution claim always arises from petitioning activity, it always satisfies the first prong, and every such claim faces a special motion to strike. CCP § 425.18, enacted in 2005, is the Legislature's adjustment — recognising that a defendant who successfully struck a SLAPP should not face the full weight of the anti-SLAPP machinery when suing over the case that was struck.
The result is a claim hedged from both directions: hard to prove because the elements are strict, and expensive to attempt because the procedural statute is aimed at it. That is the design, not an accident of it.
Common questions
Can I countersue while the case against me is still going?
No. A favourable termination of the underlying case is an element, so the case must be over and must have ended in your favour before you can file.
The case against me was dismissed. Is that enough?
Only if the dismissal reflected on the merits. A settlement, a negotiated dismissal, or a dismissal on a technical ground is not a favourable termination.
If I settle a baseless case, can I still sue over it?
No. Settling extinguishes the malicious prosecution claim — a real cost of settling that most people never consider.
Can I sue the other side's lawyer?
Yes, where the lawyer continued prosecuting the case after they knew or should have known it lacked probable cause. Merely filing a case that later fails is not enough.
What can I recover?
The attorney's fees and costs you spent defending the underlying case, lost earnings, emotional distress, reputational harm, and punitive damages where malice is proved.
What is the risk of bringing this claim?
Significant. Because the claim arises from petitioning activity, an anti-SLAPP motion is close to automatic — discovery is stayed, you must prove your case on evidence early, and if you lose you pay the defendant's attorney's fees.